Gujarat High Court
Nikhil Kanubhai Choksi vs State Of Gujarat on 8 July, 2025
NEUTRAL CITATION
R/CR.MA/29386/2017 ORDER DATED: 08/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 29386 of 2017
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NIKHIL KANUBHAI CHOKSI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. RAHUL R DHOLAKIA(6765) for the Applicant(s) No. 1
MR HA DAVE, PUBLIC PROSECUTOR assisted by MR TIRTHRAJ
PANDYA, APP for the Respondent(s) No. 1
UNSERVED EXPIRED (R) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 08/07/2025
ORAL ORDER
1. Draft amendment is allowed. Amendment to be carried out forthwith. Learned advocate Mr. Dholakia seeks permission to appear for the newly added petitioner and seeks permission to file Vakalatnama. Permission granted. Registry to accept the same.
2. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed for quashing and setting aside FIR being C.R.No.I - 763 of 1997 registered with Ellisbridge Station, as well as proceedings of Criminal Case No.524 of 1998 qua the petitioners herein.
3. That, it is the case of the first informant that he was Page 1 of 6 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:42:31 IST 2025 NEUTRAL CITATION R/CR.MA/29386/2017 ORDER DATED: 08/07/2025 undefined residing as tenant along with other such tenants at a bungalow namely "Magan Bhuvan" since years. That, the applicant herein being a partner of Silver Construction had purchased the said bungalow from the heirs of its original owner along the rights of the said tenants in the year 1993 for constructing an apartment complex by the name of "Alishan Tower". That, it was agreed between the parties that the first informant for his share of the bungalow as a tenant, was to be paid 15 lakh rupees. That, for the said amount, the first informant was to be allotted a flat at a building by the name of "Adhunik Apartment" worth Rs. 7 lakh which was handed over to the first informant. That, the applicant herein had also paid Rs. 5 lakh via cheque to the first informant. It is alleged that the accused persons had assured possession of an apartment in "Alishan Tower" and remaining Rs. 3 lakh of the agreed upon Rs. 15 lakh was to be credited towards the total consideration of the said apartment. That, eventually the accused persons had never completed the construction work of "Alishan Tower" and despite repeated inquires by the first informant no satisfactory answer was given by the accused persons and on the contrary the first informant was threatened with dire consequences. Hence, the impugned FIR is filed.
4. In a case where the first informant, who was tenant of the disputed property, entered into the agreement with the petitioners at Annexure D, since did not comply with the execution of the deed of the undertaking, the questioned FIR was filed, which culminated into criminal case.
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5. Learned advocate for the petitioners referring to page 24 and 25 (Annexure C) would submit that even the last condition, which was not complied with in the deed of execution is also fulfilled and the amount of Rs.1,05,750/- was paid to the first informant at the relevant time by way of cheque. The first informant since expired, this Court passed following order on 8.4.2025:-
"It is submitted by learned advocate for the petitioner that respondent no.2 is now expired with which the petitioner entered into compromise and first informant was paid Rs. 1,05,750/-, as also executed declaration and affidavits for withdrawing the criminal case. Learned advocate for the petitioner would submit that since the first informant is expired, the said settlement can be verified from his two sons viz., Bharat Shivprasad Gadhvi and Dipak Shivprasad Gadhvi.
Learned APP to verify the contents of the compromise stated in declaration and affidavit before this Court by recording statement of sons of the first informant as named herein above though the concerned Police Officer. Adjourned to 08/07/2025. IR to continue till then."
6. Learned APP pursuant to the aforesaid order, would submit that the investigating officer has tried level best to contact Bharat Shivprasad Gadhvi and Dipak Shivprasad Gadhvi, but they have not cooperated in giving statement and even did not come to the police station and hence, it appears that they are not interested in prosecuting the matter any further.
"RECEIPT Page 3 of 6 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:42:31 IST 2025 NEUTRAL CITATION R/CR.MA/29386/2017 ORDER DATED: 08/07/2025 undefined RECEIVED of and from Rajnagar (Ellisbridge) Association of Ahmedabad/ Raj Rajeshwari Members Association of Ahmedabad, a sum of Rs.1,05,750-00 (Rupees One Lac Five Thousand Seven Hundred Fifty only) by Pay Order No.012167 dated 25-09-2006 issued by Bank of India, Memnagar Branch, Ahmedabad, being the full and final amount receivable by me / by the undersigned firm / company upon full and final settlement and as per the understanding and as against relinquishment of my / firm's / company's all and whatever rights over any part or portion of the land / property hearing Final Plot No.701/1 (Old No.501/1-B) of Town Planning Scheme No.3/5 (Varied) Ahmedabad (part of Mouje:
Chhadavad, Taluka City) belonging jointly by (1) Rajnagar (Ellisbridge) Association and (2) Raj Rajeshwari Members Association or in the sald Associations towards membership or otherwise as full and final settlement of my / firm's / company's claiın including any action / proceedings in Hon'ble City Civil Court / Consumer Disputes Redressal Comission Ahrnedabad (National Consumer Disputes Tribunal) Criminal Court or any other authority or forum which the undersigned has undertaken to withdraw unconditionally and not to pursue the matter any further and shall accordingly withdraw the same and I, the undersigned firm / company hereby discharge
(a) the aforesaid two associations and also discharge M/s. Silver construction Company (Nikhil Chokshi) (a) Shri Nikhil Kanubhai Chokshi (b) Adhunik Finance (c) Aditya Organizers Private Limited (2) H. K. Consultancy Services from their obligations to me and shall also not claim any such right in future over the aforesaid property or any part thereof or against any parties connected with the said land/ property or the scheme thereon."
7. The aforesaid fact is also buttressed or supported by the cheque issued in favour of the first informant dated 25.9.2006 for a denomination of Rs.1,05,750/-.
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8. In view of above, the deed of undertaking (Annexure D) now is fully complied with. In the aforeaid premises, trial of criminal case would be futile exercise and sending the petitioners to face the rigmarole of the trial is absurd process.
9. In the case of State of Haryana Vs. B.Bhajanlal & ors., AIR 1992 SC 604, the Hon'ble Apex Court summed up the proposition of law, which reads as under:-
"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations ins the F.I.R. and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the code.
(3) Where, the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same donot disclose the commission of any offence and make out the case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code.
(5) Whether, the allegations made in the F.I.R. or complaint are sO absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.Page 5 of 6 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:42:31 IST 2025
NEUTRAL CITATION R/CR.MA/29386/2017 ORDER DATED: 08/07/2025 undefined (6) Where, there is an express legal bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) toi the institution and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
9.1 The findings of the Hon'ble Apex Court in para 1,3 and 7 are attracted in the present case. In view of above, present petition deserves consideration.
10. In the result, the petition is allowed and impugned FIR being C.R.No.I - 763 of 1997 registered with Ellisbridge Station as well as proceedings of Criminal Case No.524 of 1998 qua the petitioners herein are hereby quashed and set aside. Rule made absolute to the aforesaid extent. Direct service is permitted.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 6 of 6 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 10 2025 Downloaded on : Thu Jul 10 21:42:31 IST 2025